REASONS FOR JUDGMENT
1 This is an application by ResMed Limited for leave to appeal from a judgment given in two proceedings by a single Judge of the Court on 29 May 2015. In those judgments, the primary Judge stayed proceedings by the applicant, ResMed Limited, and the first respondent, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the "Australian Manufacturing Workers' Union" ("the respondent") for declarations in relation to the meaning of the eligibility rule of the respondent.
2 In proceeding NSD 846 of 2014, the applicant sought a declaration that the respondent was not entitled to represent the industrial interests of certain of the applicant's employees who would be covered by a proposed enterprise agreement on the ground that they fell outside the scope of the respondent's eligibility rule. In proceeding NSD 915 of 2014 the respondent sought declaratory relief against the applicant as to whether the respondent's eligibility rule permitted the applicant's employees to have their industrial interests represented by the respondent. These proceedings were being dealt with together by the primary Judge. They had been listed for hearing on 28 July 2015.
3 The first order made by the primary Judge in each proceeding on 29 May 2015 was as follows:
The proceedings be stayed until matters D2014/70 - Application by the AMWU and C2015/1008; - ResMed v AMWU are heard and determined by the Fair Work Commission.
The proceedings referred to by her Honour were:
(1) an application by the respondent for consent to an alteration of its eligibility rule under section 158 of the Fair Work (Registered Organisations) Act 2009 (Cth) ("the Registered Organisations Act"); and
(2) an application by the applicant under section 137A(1)(b) of the Registered Organisations Act for an order that the respondent is not to have the right to represent the industrial interests of the applicant's employees under the Fair Work Act 2009 (Cth) ("the Fair Work Act") or the Registered Organisations Act.
4 At the time of the hearing before the primary Judge, no hearing dates for the substantive application in the Fair Work Commission ("the Commission") had been programmed. In her decision of 29 May 2015, the primary Judge stayed both proceedings before her pending the hearing and determination of the two proceedings in the Commission. In her reasons for that decision, her Honour stated that the proceedings in the Commission "may render futile the grant of any declaratory relief in either proceeding before this Court and may resolve the real dispute between the parties, which this Court lacks power to do."
5 All of the relevant proceedings, both in this Court and in the Commission, arise from a dispute between the parties as to the respondent's entitlement to represent production and warehouse employees of the applicant. Although the respondent has, it seems, exercised de facto representation rights in relation to those employees for many years, recent attempts by it to initiate bargaining on their behalves with a view to having an enterprise agreement under the Fair Work Act made have led to the position now being adopted by the applicant, which is that the respondent has no right under its rules to represent those employees. This has led, as counsel for the applicant put it today, to something in the nature of a "Mexican stand-off" between the parties, the respondent asserting that it is entitled to enter the applicant's site to meet with the employees in question and the applicant denying that there is any such entitlement.
6 The dispute also led to various proceedings in the Commission and the Court, including the four to which I have referred. Of those four proceedings, the two in this Court - the applicant's first - were commenced before the two in the Commission.
7 The applicant's position was that the Court ought not to defer the resolution of the proceedings because the rights of the parties may be altered by an administrative decision. Her Honour noted that this submission received some support in the authorities. She referred to Commonwealth Bank of Australia v Finance Sector Union of Australia (2003) 124 IR453, to Finance Sector Union of Australia v The Commonwealth Bank of Australia (2004) 205 ALR 582, and to Warramunda Village Inc v Pryde (2002) FCR 5. Of Warramunda her Honour said:
That case concerned whether employees were engaged in "work" while undertaking the "sleepover shift" for the purposes of applicable awards prescribing fixed remuneration by reference to hours worked. The employees sought the imposition of penalties for breaches of the awards and recovery of underpayments and interest. The primary judge first determined the question of construction and did so in favour of the employees. Upon the employer foreshadowing an application to the Commission to vary the award retrospectively to overcome the primary judge's construction, the primary judge acceded to an application by the employees to bring forward the hearing date for the remaining issues in the trial. The appeal relevantly against the exercise of discretion in varying the date of the resumed hearing was unanimously dismissed. In so holding, the Court held that the employer's failure to act expeditiously in seeking relief from the Commission, rather than waiting to see whether it succeeded in the Court on the question of construction, was fatal to its appeal on this ground.
8 It was not that aspect of Warramunda that was of particular interest to the primary Judge in the present case, however. Rather, it was something said by Finkelstein J in the course of giving his reasons in the case. The primary Judge observed that Finkelstein J had noted that there were two:
…competing lines of authority as to the relevance of pending legislative change in the exercise of discretions relating to the management of proceedings….
Her Honour put it this way:
(a) on the one hand, is it the Court's duty to adjudicate a case upon the law as it presently is, and it was not appropriate to adjourn a case to await the result of a proposal to amend legislation in a way that would affect the parties' rights (McGarry v Boonah Clothing Pty Ltd (1988) 80 ALR 284 (Gray J)); and
(b) on the other hand, there is no rule that impending legislative change is never a material consideration in the exercise of discretions but rather everything turns upon the subject matter and relevance of the pending legislation or possibility of change to the issues before the court (Sparks v Harland [1997] 1 WLR 143 at 147 (Sedley J)).
9 In a passage set out in the reasons of the primary Judge in the present case, Finkelstein J said in Warramunda:
In Meggitt Overseas Ltd [v Grdovic (1998) 43 NSWLR 527] at 534-535, Mason P noted two exceptions. The first is where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal. The second is where the court is dealing with an application for a discretionary remedy where relief may be denied on the ground of futility. In such a case Mason P said that it may be proper to have regard to imminent legislative changes.
If the principle applies not only to statute law but to whatever law is recognised as governing the rights of the parties (a proposition that may be doubted), then an application for a retrospective variation of an award, provided it has some prospects of success, should be regarded as an exception to the rule…. So, if it appears that the Commission may rectify an award, it would be proper to afford the parties, or any one of the parties, the opportunity to seek a variation before disposing of a claim under the award. This is particularly so where, having regard to the circumstances of the case, there is relative certainty that the award will be rectified. One reason for this is that it would be unjust if the Court were to determine the right of the parties based upon an instrument which it knows, or suspects, does not reflect their actual intention, or was otherwise inappropriately procured.
10 The primary Judge in the present case continued:
Thus, even assuming that there is a rule that pending legislative change is not a reason for deferring resolution of proceedings which applies by analogy where the prospect of a change in the parties' rights and obligations arises through the exercise of administrative powers, that rule does not apply where the relief sought is discretionary and the exercise of administrative power may affect the utility of the grant of that relief. In both sets of proceedings, declaratory relief only is sought, such relief being discretionary in nature.
It followed, according to her Honour, that the application for a stay was not to be:
…determined by any rule that the Court must determine the case in accordance with the parties' existing rights and obligations. The question of whether a stay should be granted must be resolved in the exercise of discretion having regard to the potential impact of the applications before the [FWC] on the utility of the relief sought in these proceedings.
Her Honour did, accordingly, proceed to deal with the matter before her unembarrassed by any such rule. On the present application, the applicant submitted that she was in error to have set aside this rule, or at least principle, on the basis of what Finkelstein J had said in Warramunda. I shall return to that submission in due course.
11 How the primary Judge did proceed was conformably with what Bennett J had said in Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745:
(a) Prima facie, a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 (Rochfort) at [9].).
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings which requires justification of proper grounds (Rochfort at [19]).
(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary right should be interfered with Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 at 1113).
(d) The Court's task is one of "the balancing of justice between the parties", taking account of all relevant factors (Jefferson at 1113).
(e) Each case must be judged on its own merits and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (Jefferson at 1113)
12 The primary Judge applied those principles to the case before her under the following headings:
(1) The capacity for the outcome of the [Commission] proceedings to affect the utility of a grant of declaratory relief;
(2) Do the present proceedings have utility because they would assist in determining the [respondent's] Rule Change Application before the [Commission]?
(3) Do the present proceedings have utility because they would assist in determining the [applicant's] Representation Application before the [Commission]?
(4) Delay and status of proceedings.
13 The primary Judge identified the question which was required to be addressed as whether the respondent had -
… demonstrated that it is just and convenient that [the applicant's] ordinary right to have both matters tried in the ordinary course of the procedure and business of the Court be interfered with pending the resolution of the applications in the [Commission].
Her Honour answered that question in the affirmative. She said:
… in the unusual circumstances of this case, the respondent has discharged that burden notwithstanding its delay in making this application, and the temporary stay should be granted subject to liberty to apply on three days' notice.
14 Her Honour then said that the unusual feature of this litigation was that, despite seeking declaratory relief as to the coverage of the existing eligibility rules in the Federal Court, neither party wished to maintain the status quo under those rules. Each was seeking an administrative outcome in the Commission which would differ from that obtaining under the rules as they existed. Her Honour pointed out that no party had submitted that any variation to the eligibility rule would have retrospective operation. In the circumstances, therefore, a declaration of existing rights would not be deprived of utility "in that sense".
15 "However", her Honour said "[the respondent] submits that it is highly likely that the applications to [the Commission] will resolve, for all practical purposes, this litigation and the issues between the parties". Her Honour continued:
It is true that the outcome of the applications before the [Commission] cannot be predicted with any certainty and, in particular, that it will in fact resolve the dispute between the parties. Nonetheless, I accept that, subject to any application for judicial review from the [Commission's] decision, the real dispute between the parties as it presently exists - namely, whether [the respondent] can represent all or none of [the applicant's] employees - can be resolved only by the [Commission]. Moreover, if either application in [the Commission] is acceded to, there is no suggestion by either party that a declaration as to the coverage of the existing rules would be of any utility to either party.
16 I have referred to as much of the primary Judge's reasons of 29 May 2015 as is necessary to set out in my reasons today. What I have said so far will, in the light of the particular submissions made by the parties, be sufficient to deal with the applicant's application for leave.
17 The questions which arise on that application are:
(1) Whether the judgment sought to be appealed from is attended by sufficient doubt to warrant the attention of a Full Court; and
(2) Whether, assuming that judgment to be wrong, substantial injustice would be occasioned to the intending appellant if leave to appeal were not granted (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).
18 The judgment which the appellant seeks to challenge was a discretionary one, and would be disturbed on appeal only if some error had been made in exercising the discretion: House v The King (1936) 55 CLR 499, 505. Further, that judgment concerned a matter of practice and procedure, in which context the High Court in Adam P Brown Male Fashions v Philip Morris Inc (1981) 148 CLR 170, 177 approved the following statement from In re: the Will of Gilbert (1946) 46 SR (NSW) 318, 323.
… I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition, could at will, in effect, transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
To the extent that the present application requires the Court to consider the prospects of a proposed appeal, the question must be whether the applicant has a reasonable chance of crossing the bar set by these authorities.
19 It was submitted on behalf of the applicant that the primary Judge erred in not having "proper" regard for the utility of the proceedings in this Court:
(1) To settle the ongoing controversy between the parties as to the scope of the respondent's eligibility rule and, thus, the extent of its industrial activities; and
(2) To provide an authoritative and binding, baseline from which the applications in the Commission could proceed.
20 I should say at the outset that her Honour appears to have used the words "utility" and "futility" as antonyms, and there appears to be no objection from either party to that approach.
21 As to the applicant's first utility point, this amounted, with respect, to little more than an attempt to canvass the merits of the issues which had been before her Honour. It is as clear as may be that her Honour well understood that the applicant wanted the controversy about the respondent's existing rule to be judicially determined. Furthermore, her Honour accepted that that was the applicant's prima facie entitlement. She exercised her discretion from that starting point, but she said, as noted above, that -
…if either application in the [Commission] is acceded to, there is no suggestion by either party that a declaration as to the coverage of the existing rules would be of any utility to either party.
My attention was not drawn to any "suggestion" by the applicant before her Honour that would make this statement incorrect.
22 The primary Judge was not, of course, ruling then and there that the applications for declaratory relief would necessarily be dismissed as futile if the Commission awarded either of the outcomes sought by the parties respectively in that forum. But her Honour was recognising, consistently with the authorities, the realistic prospect that a futility argument might be advanced in this Court in such an event. The question before her then became a purely discretionary one, albeit commencing with a strong disposition favourably towards exercising the jurisdiction for which Chapter III of the Constitution provides. Applying the principles enunciated in Apotex, the primary Judge identified the discretionary considerations that justified the stay which she ultimately granted.
23 As to the applicant's second utility point, I can only say that nothing put to me this morning would provide any basis for accepting it. Counsel for the applicant sought to draw a distinction between the utility of having a binding court judgment on the existing rules such as would provide, in effect, a secure starting point for the applications in the Commission, on the one hand, and the utility of ensuring that the Commission would not stray into jurisdictional error by reason of mistaking the true meaning of the respondent's existing rule, on the other hand. It was said that the primary Judge dealt only with the latter in her reasons of 29 May 2015 and ignored the former, thereby failing to have regard to a relevant circumstance. This is, I consider, a distinction without a difference. Her Honour's reasons were detailed and thorough. For myself, I would not be prepared, in the absence of specific targeted submissions on the subject, to assume that those reasons did not reflect the balance and weight of the cases that had been conducted before her. The prospect that the Full Court would uphold an appeal from her Honour's judgment on the basis of this distinction is, I consider, a remote one.
24 Additionally to the two points referred to, the applicant submitted that her Honour had been in error to have applied the reasoning of Finkelstein J in Warramunda. It was said that there is no recognised exception to the general rule that a party asserting a legal right is entitled to have his or her case heard in a court of competent jurisdiction of the kind proposed by his Honour, following the guide of Mason P in Meggitt. It was said that the existence of that exception was doubted by the Full Court in Esso Australia v Federal Commissioner of Taxation (No 1) (2011) 196 FCR 560, a judgment to which the primary judge in the present case was not referred.
25 Esso was a tax appeal, it being submitted by the Commissioner that the appeal should not proceed until after the commencement of some retrospective legislation that was in the pipeline but had not yet been passed by Parliament. Unsurprisingly, the Full Court did not accept that submission. In the course of their reasons, Edmonds and Perram JJ said:
A second exception to the general principle also relied upon by the Commissioner was the acceptance by President Mason that amending legislation might be relevant to cases involving discretionary relief such as prerogative remedy or an injunction. His Honour observed: "In such cases, relief may be denied on the ground of futility. On that basis, it may be proper to have regard to imminent legislative changes: [references to authorities omitted] I note that possibility without endorsing it."(emphasis added). When regard is had to the last emphasised sentence, it may be that Meggitt does not provide a great deal of support for the Commissioner's submission. In any event, the present case is not one involving discretionary relief so that, even accepting the exception's existence, it has no direct application.
26 Particularly since this authority was not referred to the primary Judge in the present case, I do not consider that it advances the applicant's case. Their Honours did not have before them a proceeding which, in their words, involved discretionary relief. By contrast, the primary Judge had just such a case.
27 While there would be some scope to explore the limits of the second exception referred to in Warramunda in the appeal being contemplated by the applicant, I take the view that the present is a poor example of a case in which that exception should not be applied.
28 Taking everything into account, I would not answer the first question posed in Décor in the affirmative without, at the same time, considering the matter of substantial injustice.
29 With respect to that matter, I commence with the observation that the Court, in the present case, did not decline jurisdiction. The only orders which her Honour made were by way of granting stays for the further proceedings that were before her pending the outcome of the applications in the Commission. So the question which must be considered is whether substantial injustice is likely to arise from the fact that the two proceedings in the Court have been deferred or, as her Honour put it, temporarily stayed. Other than in the question begging sense of there being a need to have a justiciable controversy quelled, there was no assertion of a present legal right or entitlement being denied or delayed in these proceedings.
30 The applicant is undoubtedly exposed to the irritation of what it has described as a "Mexican stand-off" and, apparently in this atmosphere, there have been communications from representatives of the respondent which are inconsistent with the applicant's view of its own rights. I recognise that this is not an ideal situation for the parties and, in particular, it is not an ideal situation for the applicant. However, the fact remains that the applicant is not being held out of any concrete entitlement which it has at law. Nor is it being vexed by legal proceedings being taken against it on the basis of a view of the respondent's rules which it contends to be wrong.
31 The irritations of the kind to which I have referred - whilst I would not at the general level seek to diminish their importance for the applicant - are not the stuff of substantial injustice in the terms adumbrated by their Honours in the Décor case. The applicant ran a very substantial case before the primary Judge in resistance to the respondent's application for stays, and it got a result.
32 In my view, the primary Judge, as the docket Judge for the proceedings in question, was and remains best placed to identify the nature and inherent strength of the procedural questions and issues which arise from time to time at that level. Her Honour gave the parties liberty to apply, from which I infer that, if any concrete prospect of substantial injustice should at any time arise in a practical and not merely a theoretical sense, her Honour would be amenable to any such application based on the conventional ground of changed circumstances as the applicant might be advised to bring.
33 The decision which I am required to make is also a discretionary one. The two arms of the argument identified in Décor should not be considered in isolation, one from the other. On the one hand, I have a case in which, as counsel for the applicant has pointed out, there are respects in which at some stage it might be appropriate for a Full Court to consider the limits of the second exception referred to in Warramunda, but as I have said, I am not persuaded that the present case is a very good example of a case which calls for such an examination. On the other hand, for the reasons I have given, I am not persuaded that any substantial injustice would be visited upon the applicant if the orders made by the primary Judge on 29 May 2015 were allowed to stand.
34 When those two considerations are placed together in the frame, the result must be that the application for leave is dismissed. That will be the order which I make.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.